Separating Crime from Punishment: What India’s Prisons Might Tell Us about Its Criminal Process

National Law School of India Review (Forthcoming) (Slightly Modified)

19 Pages Posted: 4 Feb 2021 Last revised: 26 Sep 2021

Date Written: December 13, 2020

Abstract

Since the 1980’s, the judiciary has perceived prisons in India as a site of rehabilitation and has focused on addressing prison reform through piecemeal managerial directives. Simultaneously, the criminal process has steadily incarcerated more persons as undertrials, Worryingly, these trends have been progressively worsening for the last decade that has rendered prison reform infructuous. Through an analysis of prison populations and crime rates in India it is evident that the stable rise in prison population is not a mere consequence of managerial inefficiency but a reflection of a systemic preference for undertrial incarceration. This is premised on the manner in which the criminal justice system allows for liberal arrests and illiberal bail. As a consequence, prisons symptomatise how this preference for incarceration of undertrials hollows out the presumption of innocence and renders notions of guilt or innocence irrelevant. Thus, prison reform must be based on a recognition that prisons are not sites of rehabilitation but instead serve as warehouses for the innocent.

Keywords: Prisons, Penology, Criminal Procedure, Criminal Justice, Indian Law, Criminal Theory

Suggested Citation

Sekhri, Abhinav, Separating Crime from Punishment: What India’s Prisons Might Tell Us about Its Criminal Process (December 13, 2020). National Law School of India Review (Forthcoming) (Slightly Modified), Available at SSRN: https://ssrn.com/abstract=3747975 or http://dx.doi.org/10.2139/ssrn.3747975

Abhinav Sekhri (Contact Author)

Delhi High Court ( email )

Delhi
India Gate
Delhi, 110003
India

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